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OSHA’s New Focus on Temp Workers

Temporary workers represent a growing employee segment in the United States—up 28 percent between 2010 and 2013, according to a CareerBuilder and Economic Modeling Specialists study conducted earlier this year.

Several studies purport to show that temporary workers are more likely than their full-time counterparts to experience on-the-job injuries. Last year, saying that instances of temporary worker injuries or fatalities are rising because these workers aren’t receiving adequate safety training or safety protection, OSHA issued the Temporary Worker Initiative, which applies even to the smallest businesses.

Who’s Responsible for Temp Workers?

Companies that need temporary employees often rely on staffing agencies to find and provide those workers. Historically, responsibility for training and on-the-job safety devolved to the host employer. OSHA’s new initiative, however, places greater accountability on staffing agencies for the temporary workers they send to employers, with the idea that the measure will pressure both parties to up their safety games.

Under the Temporary Worker Initiative, OSHA states that it will consider staffing agencies and their clients to be joint employers of temporary employees. This suggests that, for agencies in particular, it isn’t enough to have an agreement that the host employer is responsible for job training and safety. Instead, both should have specific contractual agreements to allocate duties for injury prevention and safety education.

OSHA’s directive suggests that staffing agencies have verification obligations beyond what we’ve seen before, including:

»  Inspecting each workplace.

»  Inquiring about any safety and health hazards that are present.

»  Identifying workplace hazards, whether the employer specifically mentions them or not.

»  Verifying that the employer’s claimed safeguards (or others that may be needed), such as protective equipment, are available and appropriate and that training is actually occurring.

»  Reviewing the employer’s OSHA logs of enforcement history, safety and health complaints and hazard corrections.

Employers must comply with the regulations for temp workers just as they would for full-time workers. They need to confirm that their staffing agencies are, in fact, providing promised safety training for temporary employees and that the training is relevant to the workplace.

For larger companies, a safety department or consultant may oversee OSHA compliance. The OSHA initiative is particularly problematic, however, for smaller companies, which have the same duty to comply with the Temporary Worker Initiative but often don’t have enough staff or in-house expertise to provide ongoing monitoring and training. If the company doesn’t have someone devoted to safety oversight, the responsibility falls on management generally.

The Cost of Non-Compliance

In a recent memo, OSHA’s regional administrators were instructed that, if a temporary worker is or could be exposed to a serious hazard at the host employer’s site, and the staffing agency hasn’t taken steps to identify those hazards, OSHA should review the agency’s staffing practices. If OSHA then finds that responsibilities to temporary workers haven’t been fulfilled to its satisfaction, the agency will issue citations to both the staffing firm and the host employer.

In the last few months alone, OSHA has meted out hundreds of thousands of dollars in fines to businesses and their staffing agencies, showing that the risk of non-compliance is very real. Under the statute, fines can be enormous—up to $70,000 for a willful violation. OSHA typically issues citations for each problem it finds, so multiple violations conceivably could result in several citations, each with a penalty attached.

How to Comply

The Temporary Worker Initiative, according to OSHA, encourages host employers and staffing agencies to work collaboratively to ensure temporary worker safety. Both entities should make sure their contracts:

»  Identify who is accountable for each aspect of training.

»  Spell out how each party’s responsibilities will be accomplished.

»  Specify that information about their mutual employees will be shared.

»  Provide that the agency will notify the host employer about temporary employees’ work comp claims, and that the employer will share information about injuries with the staffing agency.

»  Outline how the two entities will openly share information on safety, including training provided, potential workplace hazards and what the employer is doing to address them, and the staffing agency’s site visit evaluations.

»  Address how the company and the agency will address temporary worker injuries or illnesses to prevent future incidents.

The Temporary Worker Initiative heightens the need for safety vigilance in the workplace. Employers who use temporary workers, and the agencies who supply them, need to revisit their approaches to make sure they stay on the right side of OSHA’s expanded enforcement of the statute.

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